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State v. Murray

October 29, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NEAL MURRAY, DEFENDANT-APPELLANT.



Before Judges Brochin and Kleiner.

The opinion of the court was delivered by: The opinion of the court was delivered by Kleiner, J.A.D.

[9]    Submitted September 24, 1998

On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

Defendant, Neal Murray, appeals from the denial without an evidentiary hearing of his petition for post-conviction relief. Under the factual circumstances set forth in this particular petition, we conclude defendant was improvidently denied the opportunity to demonstrate that he was denied effective assistance of counsel when he was sentenced to a custodial term of imprisonment. We reverse and remand for an evidentiary hearing.

Tried to a jury, defendant was convicted of the following crimes: "robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1 (counts one, two and three); aggravated sexual assault, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:14-2a (count four); possession of two handguns with the purpose to use them unlawfully, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4a (count five); and possession of a knife for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4d (count six)."

At sentencing on March 4, 1988, the trial Judge merged defendant's conviction on count five into defendant's convictions on counts one, two, and three. Defendant's conviction on count six was merged into the convictions on counts one and four. His conviction on count three was merged into the convictions on counts one and two. The Judge then sentenced defendant to concurrent twenty year terms of imprisonment with ten years of parole ineligibility on counts one, two, and four. The Judge also ordered each sentence to be served concurrently with a separate sentence imposed on an unrelated indictment.

Defendant's conviction and the sentence imposed were affirmed in an unreported decision, A-3725-87T7, on December 28, 1988. In that decision we offered the following summary:

"The convictions arose from the armed robbery of a Pizza Hut restaurant in Hamilton Township by two armed men dressed in ski masks. Defendant's guilt was overwhelmingly proved by the testimony of his confederate, amply confirmed by defendant's own statements and real evidence in the form of weapons and loot recovered from defendant, a ski mask and gloves found nearby when he was arrested and a revolver and ski mask were recovered from his confederate [John Sheil]."

Certification was denied on February 9, 1989. Thereafter, on August 14, 1990, defendant's petition for a writ of habeas corpus in the Federal District Court was denied; the order entered that same date provided, in part, "[t]here is no probable cause for appeal." *fn1

Defendant filed a petition for post-conviction relief on December 10, 1995. Essentially defendant contended that the trial Judge committed reversible error in the jury charge on the issue of accomplice liability and that he was denied effective assistance of counsel in that: (1) his trial attorney never communicated to him a favorable plea offer received prior to trial and (2) his trial counsel had a conflict of interest with counsel for co-defendant, John Sheil.

Recognizing the five-year time-bar to post-conviction relief proceedings, R. 3:22-12, *fn2 defendant attempted to demonstrate excusable neglect by arguing: (1) his lack of legal knowledge; (2) his having been led "astray" by his original counsel who had advised him as to the futility of continuing litigation; and (3) his having been led "astray" by the inclusion in the Federal Court order denying his petition for a writ of habeas corpus of a determination that "there is no probable cause to appeal."

The motion Judge concluded that defendant's petition for post-conviction relief was time-barred, having been filed seven years and nine months after his conviction. R. 3:22-12. The Judge also determined that defendant had not shown excusable neglect for the delay and specifically rejected defendant's claim that his lack of legal education should excuse his delay or that his trial counsel's advice or the wording of the Federal Court order justified or excused defendant's delay. Additionally, the Judge noted that defendant's claims of trial error were barred by R. 3:22-4, as those errors could have and should have been raised on direct appeal. The Judge dismissed defendant's petition without an evidentiary hearing. *fn3

On appeal, defendant raises four points of error: *fn4

"POINT I THE PROCEDURAL BAR TO THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF ...


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